Burke v. Burke

• Court: Court of Appeals of Indiana
• Citation: 191 N.E.2d 530,135 Ind.App. 235
• Docket Number: No. 19669,No. 2,19669,2
• Parties: Raymond BURKE, Appellant, v. Jack D. BURKE, Appellee
• Decision Date: 28 June 1963

Page 530

191 N.E.2d 530 135 Ind.App. 235 Raymond BURKE, Appellant,
v.
Jack D. BURKE, Appellee. No. 19669. Appellate Court of Indiana, Division No. 2. June 28, 1963.
Rehearing Denied Aug. 12, 1963.

[135 Ind.App. 237]

Page 531

Charles C. Campbell, Rochester, Kizer & Neu, Plymouth, for appellant.

Hillis & Hillis, John T. Hillis, Robert C. Hillis, Tom F. Hirschauer, Logansport, for appellee.

HUNTER, Judge.

This appeal is brought by appellant (plaintiff below) questioning the trial court's action in directing a verdict for the appellee (defendant below) and the court's judgment duly entered in accordance with said verdict.

The appellant was the father of a fifteen (15) year old boy who was killed while riding in a car driven by the appellee as a result of a head-on collision with a truck being driven by a third party. This action was brought under the guest statute and the appellant alleged the appellee was liable for wilful or wanton misconduct.

By the provisions of Acts of 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement, it is provided that the owner or operator of a motor vehicle shall not be liable for loss or damage arising from injuries to, or death of, a guest unless such injuries or [135 Ind.App. 238] death are caused by the wanton or wilful misconduct of such operator, owner or person responsible for the operation of such motor vehicle.

The motion for directed verdict was sustained at the close of the plaintiff's evidence. Appellant asserts that there was substantial evidence or reasonable inferences that could be drawn terefrom supporting each material allegation essential to recovery and therefore it was error for the trial court to sustain the motion for a directed verdict citing Miller etc. v. Smith (1955), 125 Ind.App. 293, 124 N.E.2d 874; Bradford v. Chism (1963), Ind.App., 186 N.E.2d 432, 1 Ind.Dec. 21. This is a correct statement of the rule and is applicable if the scope and nature of the evidence warrants the conclusion.

Hence, our duty is to review the evidence most favorable to the appellant to determine whether there was substantial evidence of probative value or reasonable inferences to be drawn therefrom to sustain the appellant's cause of action. In doing so we must draw against the party requesting a peremptory instruction, all inferences which the jury might reasonably draw. Johnson v. Estate of Gaugh et al. (1955), 125 Ind.App. 510, 124 N.E.2d 704; Bradford v. Chism, supra.

In viewing the evidence most favorable to the appellant, the record indicates that the only evidence presented by the plaintiff

Page 532

of the defendant's conduct at the time of the collision was given by Raleigh Sellers, the driver of the truck involved.

The pertinent portions of Sellers' testimony are as follows:

'Q. And at about what speed were you driving?

[135 Ind.App. 239] 'A. Between forty and forty-five miles an hour.' (Transcript p. 94, lines 10-11)

'Q. As you were coming from the south, going north towards the point where the collision eventually occurred, did you see any other vehicles on the highway?

'A. Yes, sir.

'Q. And what vehicle or vehicles did you see?

'A. I seen this car coming that I crashed with.

'Q. Now, when you first saw that car how far away would you say you were from the car which you eventually collided with?' (Transcript p. 95, lines 20-27)

'A. That is pretty hard to answer.

'Q. Well, let's put it this way. How far was the car approximately from you when you now have any recollection of having that car brought to your attention?

'A. It could vary so much. I would hate to answer that. It could have been 70 rods, it could have been a little farther, it could have been a little closer.

'Q. When you first saw it?

'A. Yes. Anything that I say on that would be merely a----

'Q. Well, we know, Mr. Sellers, that you didn't----

'A. It was quite a distance.

'Q. --make any measurements or anything?

'A. I did not, and if I would try to, I wouldn't know where to commence measuring from the point that I first saw it.

'Q. Could you estimate how fast it was going at the time you first saw it?

'A. No. Nobody could make that kind of a statement.

'Q. That's right, coming towards you?

'A. You couldn't do it.' (Transcript p. 96, lines 1-19)

Another witness was brought in out of order and the rest of Sellers' estimony was given the next day:

[135 Ind.App. 240] 'Q. Now, could you tell the Jury, Mr. Sellers, how far you were away from the point where the accident happened at the time that you first observed this car coming from the north?

'A. It would have been--this is going to be an approximate figure--it would be approximately in the neighborhood of 20 rods when I first observed the car coming toward me.

'Q. And where on the highway would you say you were in relation to the contour of any hill or dip, or anything of that kind, if you remember?

'A. I was at the foot of the dip.

'Q. That would be the south edge of it?

'A. Yes, the south edge of it. I was in the approximate vicinity of the foot of that dip when I observed this car coming down slope the other way.

'Q. Now, can you tell the Jury how far, in your opinion, that car was from the point of impact when you first saw it?

Page 533

'A. This is going to be an approximate figure also. It would be approximately in the neighborhood of 30 to 35 rods from the point of impact when I first observed the car.

'Q. Now, when you first observed this other car, will you tell the jury where it was on the highway--the position of it on the highway?

'A. When I first observed this car, it had come around this jog and the front wheels or the wheels of the car, it would be the left wheels were across the center line just a little bit.

'Q. Then what did you do after that?

'A. After that, I progressed as usual, it wasn't anything alarming to me.

'Q. What did you do in relation to the driving of your truck--where did you drive it?

'A. I kept my position as close to the right-hand side as was reasonable, I would say, and kept my attention focused to my side of the highway because of watching where I was going there.

'Q. And when next did you see this car to be conscious of it?

[135 Ind.App. 241] 'A. The next observation, if you would call it an observation, was just a blur and a crash actually.' (Transcript p. 101, lines 20-27, p. 102 lines 1-27 and p. 103, lines 1-5) (our emphasis)

The only other evidence on the subject was given by a secretary of one of appellant's attorneys who stated that the appellee said

'The accident happened like the State Police said. I cannot say about that. When you have a car sliding there is not much...